Anti-Vaxx Parents Take their Case to Court

On 8 February 2012, some media outlets announced that two Queens, N.Y. parents were suing the Department of Education in Queens Supreme Court.  The case involves Nicole Phillips, the mother of two children at P.S. 188 forced to miss several weeks of class since November and Fabian Mendoza-Vaca, the father of two students at P.S. 107.  Both have religious exemptions for vaccines and are asking the court to, "nullify a law that would keep their children out of school if classmates are carrying communicable diseases such as measles, mumps, and chicken pox." When Ms. Phillips and Mr. Mendoza-Vaca obtained their religious waivers, they agreed to this:

Title: Section 66-1.10 - Exclusion of susceptibles in event of disease outbreak

66-1.10 Exclusion of susceptibles in event of disease outbreak. (a) In the event of an outbreak of diphtheria, polio, measles, rubella or mumps in a school, the commissioner may order the appropriate school officials to exclude from attendance all students without documentation of immunity, as specified in section 66-1.3 (a) or (b) of this Subpart, including those who have been excused from immunization under section 66-1.3 (c) or (d) of this Subpart.

(b) The exclusion shall continue until the commissioner determines that the danger of transmission has passed or until the documentation specified in section 66-1.3(a) or (b) of this Subpart has been submitted.

They are now complaining that they wish to risk the "chances with these mild childhood illnesses."  But it's not just about their acceptance of the risks, it's about public health overriding their wishes and protecting others for whom cannot be vaccinated for health reasons (who also must stay home in the event of an outbreak) and the larger community.

An attorney representing the parents, Patricia Finn states:

"The regulation violates both state laws regarding vaccination, as well as the free exercise clause of the First Amendment.

 “As it currently stands, the DOE’s policy is unfair to the children being taken out of school,”

"I'd like the judge to strike down the Chancellor's regulation as unconstitutional and order these children returned to school," Finn said. "It defeats the purpose of the state exemption. You can't have someone off applying the rule when they feel like it."

 No it doesn't.  The parents are free to exercise their religious freedom which consists of:

"We don't want anything being put into our bodies at all," said Nicole Phillips, the mother of two children at P.S. 188 forced to miss several weeks of class since November. "We'd rather rely on our natural immune system and our faith in God. This is about my children's rights."
"It is my opinion that resorting to vaccinations demonstrates a lack of faith in God, which would anger God and therefore be sacrilegious," Mendoza-Vaca claims.

There is no violation of their First Amendment rights as they're not being prevented from practising their religion.  Their children are being prevented from becoming infected and also acting as disease vectors in the school community.  There is simply no constitutional protection for vaccine exemptors attending school in the event of an outbreak.  An excerpt from Vaccination Mandates: The Public Health Imperative and Individual Rights (Is There a Constitutional Right to a Religious Exemption from Mandatory Vaccination? pp. 274) states:

Challenges to mandatory vaccination laws based on religion or philosophic be­lief have led various courts to hold that no constitutional right exists to either religious or philosophic exemptions. First Amendmentf free exercise clause Freedom to believe in a religion is absolute under the First Amendment. How­ever, freedom to act in accordance with one’s religious beliefs “remains subject to regulation for the protection of society.”40 The U.S. Supreme Court in the 1963 case of Sherbert v. Verner41 established a balancing test for determining whether a regulation violated a person’s First Amendment right to free exercise of religion. The test, which prevailed until 1990, required the government to justify any substantial burden on religiously motivated conduct by a compelling VACCINATION MANDATES 275 government interest and by means narrowly tailored to achieve that interest (374 U.S. at 406–8, 83 S.Ct. at 1795–6).

In addition, in a case that predates the Yoder decision and enactment of a statutory religious exemption by Arkansas, the Arkansas Supreme Court in Wright v. DeWitt School District 45 held that no First Amendment right existed to a religious exemption given the state’s compelling interest in mandating vac­cination under its police power to protect the public health.g (238 Ark. at 913, 385 S.W.2d at 648). Significantly, the U.S. Supreme Court in Yoder referenced the Wright decision in dicta regarding cases in which the health of the child or
public health are at issue, with the implication that a vaccination mandate pro­viding no religious exemption would meet the compelling state interest test (406 U.S. at 230, 92 S.Ct. at 1540–1).

The lawsuits have been transferred to Brooklyn Federal Court for an emergency hearing that could be decided any day now.